Way back in the summer of 2014, the United States Supreme Court struck down a Massachusetts law that forbid protestors from approaching within 35 feet of abortion clinics. The buffer zone law was established in response to acts of violence. Not surprisingly, the court based its ruling on the First Amendment, accepting that such a buffer zone violates the right of free expression of those wishing to protest or provide unsought counseling to those seeking abortions.
Though I am a staunch supporter of the freedom of expression, I do recognize that it has justified limits—especially when they protect the life, liberty and property of others. To use the stock examples, freedom of expression does not permit people to engage in death threats, slander, or panicking people by screaming “fire” in a crowded, non-burning theater.
While I recognize that a buffer zone serves a legitimate purpose in enhancing safety, I tended to agree with the court based on utilitarian considerations. The harm to freedom of expression arising from banning protest in public spaces exceeds the risk of harm caused by allowing the protests. But people who engage in threatening behavior should be removed, but that does not require a buffer law. But the arguments in favor of the buffer zone have merit—weighing the freedom of expression against safety concerns is challenging but can be debated in good faith.
Ironically, but as one would expect, the Supreme Court has its own buffer zone. There is a federal law that bans protestors from the plaza of the court. This buffer zone is legally justified by defining the plaza as not being public space. This is like how pro-gun legislatures ban guns from their workplace while ensuring that guns can be freely brought into most other places. There is, as far as I know, no requirement for consistency in the law. But morality usually requires such consistency, at least in the application of principles (although this can be debated).
A principle is consistently applied when it is applied in the same way to similar beings in similar circumstances. Inconsistent application is a problem because it violates three commonly accepted moral assumptions: equality, impartiality and relevant difference.
Equality is the assumption that people are initially morally equal and hence must be treated as such. Naturally, a person’s actions can affect the initially equality. For example, a person who commits horrible evil deeds would not be morally equal to someone who does predominantly good deeds. Impartiality is the assumption that moral principles must not be applied with partiality. Inconsistent application would involve non-impartial application.
Relevant difference is a common moral assumption. It is the view that different treatment must be justified by relevant differences. What counts as a relevant difference can be very controversial. For example, while many people think that gender is not morally relevant to how much someone should be paid, there are those who disagree. But relevant difference requires that principles be applied consistently.
Given that the plaza of the court is a space analogous to a sidewalk, then if free expression guarantees the right to protest in front of abortion clinics, then the same should apply to the plaza, even if allowing protests puts the court at risk. To grant protestors access to the sidewalks outside clinics while forbidding them from the plaza of the court would be an inconsistent application of the principle. The same can be said about protesting outside any federal building, such as a place conducting ICE operations. But, of course, there is always a way to counter this.
One principled way to counter this view is to show that an alleged inconsistency is merely apparent. One way to do this is by showing that there is a relevant difference in the situation. If the Supreme Court wishes to morally justify their buffer while denying others their buffers, they must show a relevant difference that warrants the difference in application. They could, for example, contend that a plaza is relevantly different from a sidewalk. One might point to a size difference and how it impacts protesting. They could also contend that government property is exempt from the law (much like certain state legislatures ban the public from bringing guns into the legislature building even while passing laws allowing people to bring guns into places where other people work)—but they would need to ground the exemption. Otherwise, it would just be defending an inconsistency with more inconsistency.
My view is that there is no relevant difference between the scenarios: if freedom of expression applies to the spaces around private property, it also applies to the spaces around state property (which is the most public of public property).
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